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10 Big Myths about copyright By Brad Templeton The following article deals with common questions about copyright as they relate to the electronic communications on the Internet, including electronic discussions forums on "USENET" conferences. The main point of reference for the legal issues discussed is the international Berne copyright convention; some references to U.S. and Canadian law are also included. An attempt to answer common myths about copyright seen on the net and cover issues related to copyright and USENET posting. 1) "If it doesn't have a copyright notice, it's not copyrighted." The default you should assume for other people's works is that
they are copyrighted and may not be copied unless you know otherwise.
There are some old works that lost protection without notice, but
frankly you should not risk it unless you know for sure. It is true that a notice strengthens the protection, by warning
people, and by allowing one to get more and different damages, but
it is not necessary. If it looks copyrighted, you should assume
it is. This applies to pictures, too. You may not scan pictures
from magazines and post them to the net, and if you come upon something
unknown, you shouldn't post that either. The correct form for a notice is: "Copyright [dates] by [author/owner]". You can use C in a circle © instead of "Copyright" but "(C)" has never been given legal force. The phrase "All Rights Reserved" used to be required in some nations but is now not needed. 2) "If I don't charge for it, it's not a violation." 3) "If it's posted to Usenet it's in the public domain." Some argue that posting to Usenet implicitly grants permission
to everybody to copy the posting within fairly wide bounds, and
others feel that Usenet is an automatic store and forward network
where all the thousands of copies made are done at the command (rather
than the consent) of the poster. This is a matter of some debate,
but even if the former is true (and in this writer's opinion we
should all pray it isn't true) it simply would suggest posters are
implicitly granting permissions "for the sort of copying one
might expect when one posts to Usenet" and in no case is this
a placement of material into the public domain. Furthermore it is
very difficult for an implicit licence to supersede an explicitly
stated licence that the copier was aware of. Note that all this assumes the poster had the right to post the
item in the first place. If the poster didn't, then all the copies
are pirate, and no implied licence or theoretical reduction of the
copyright can take place. Note that granting something to the public domain is a complete abandonment of all rights. You can't make something "PD for non-commercial use." If your work is PD, other people can even modify one byte and put their name on it. 4) "My posting was just fair use!" The "fair use" exemption to copyright law was created
to allow things such as commentary, parody, news reporting, research
and education about copyrighted works without the permission of
the author. Intent, and damage to the commercial value of the work
are important considerations. Are you reproducing an article from
the New York Times because you needed to in order to criticise
the quality of the New York Times, or because you couldn't
find time to write your own story, or didn't want your readers to
have to pay to log onto the online services with the story or buy
a copy of the paper? The first is probably fair use, the others
probably aren't. Fair use is almost always a short excerpt and almost always attributed.
(One should not use more of the work than is necessary to make the
commentary.) It should not harm the commercial value of the work
- in the sense of people no longer needing to buy it (which is another
reason why reproduction of the entire work is generally forbidden.) Note that most inclusion of text in Usenet follow-ups is for commentary and reply, and it doesn't damage the commercial value of the original posting (if it has any) and as such it is fair use. Fair use isn't an exact doctrine, either. The court decides if the right to comment overrides the copyright on an individual basis in each case. There have been cases that go beyond the bounds of what I say above, but in general they don't apply to the typical net misclaim of fair use. It's a risky defence to attempt. 5) "If you don't defend your copyright you lose it." 6) "Somebody has that name copyrighted!" You can't copyright words, but you can trademark them, generally
by using them to refer to your brand of a generic type of product
or service. Like an "Apple" computer. Apple Computer "owns"
that word applied to computers, even though it is also an ordinary
word. Apple Records owns it when applied to music. Neither owns
the word on its own, only in context, and owning a mark doesn't
mean complete control - see a more detailed treatise on this law
for details. You can't use somebody else's trademark in a way that would unfairly hurt the value of the mark, or in a way that might make people confuse you with the real owner of the mark, or which might allow you to profit from the mark's good name. For example, if I were giving advice on music videos, I would be very wary of trying to label my works with a name like "mtv." 7) "They can't get me, defendants in court have powerful
rights!" 8) "Oh, so copyright violation isn't a crime or anything?" 9) "It doesn't hurt anybody - in fact it's free advertising." 10) "They e-mailed me a copy, so I can post it." * Copyrights can expire after a long time, putting something into the public domain, and there are some fine points on this issue regarding older copyright law versions. However, none of this applies to an original article posted to USENET. In Summary Copyright is still violated whether you charged money or not, only
damages are affected by that. Postings to the net are not granted to the public domain, and don't
grant you any permission to do further copying except perhaps the
sort of copying the poster might have expected in the ordinary flow
of the net. Fair use is a complex doctrine meant to allow certain valuable
social purposes. Ask yourself why you are republishing what you
are posting and why you couldn't have just rewritten it in your
own words. Copyright is not lost because you don't defend it; that's a concept
from trademark law. The ownership of names is also from trademark
law, so don't say somebody has a name copyrighted. Copyright law is mostly civil law where the special rights of criminal
defendants you hear so much about don't apply. Watch out, however,
as new laws are moving copyright violation into the criminal realm. Don't rationalize that you are helping the copyright holder; often
it's not that hard to ask permission. Posting E-mail is technically a violation, but revealing facts
from E-mail you got isn't, and for almost all typical E-mail, nobody
could wring any damages from you for posting it. See also:
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